Do we need a commission for mental health?

Once upon a time, England and Wales had a Lunacy Commission and then a Board of Control

These extracts are about why the 1959 Mental Health Act got rid of them

About the Board of Control's functions before it dissolved into the Ministry of Health

About how Scotland turned their Board into a Mental Welfare Commission

About the continuation into the present of ideas and institutions that people relate to the old Board of Control

About the discussion in England and Wales before creating a Mental Health Act Commission

1957: Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency. 1954-1957

Chairperson: Lord Percy.

Chapter 6: Future Compulsory Powers

Chapter 7: Future Procedures when Compulsory Powers are used and Procedures in Court Cases

Chapter 9: Relations between the Mental Health Services and other Mental Health Services

Chapter 10: The Division of Functions between Local Authosities, Hospitals and other Authorities and the Developments of Community Care

Chapter 11: Powers and Duties of the Central Government

Part Seven: Just Chapter 12: Hospitals and Homes Outside the National Health Service and Other Private Care

Part Eight: Just Chapter 13: Miscellaneous


PART FOUR

POWERS AND DUTIES OF THE CENTRAL GOVERNMENT

CHAPTER 11

725. In this chapter we discuss the functions of the central government in relation to the general administration of the public mental health services, and in connection with the procedures applied to individual patients...
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Supervision of local services and of the general care of patients

(i) The past and the present

726. The closeness of the control exercised by central departments over services administered locally by local authorities, and the methods through which such control has been exercised, have varied a great deal under different Acts and at different periods of our social history. There were considerable variations in the powers and duties given before 1948 under various Acts to the central government departments responsible for the supervision and inspection of the health and welare services which were administered locally by local authorities. There are also differences in the powers and duties which the central departments exercise under the Acts which have governed the administration of these services since 1948 and which have wholly or partly superseded the earlier legislation. We must describe these differences and the historical reasons for them before making our recommendations for the future in regard to mental health.

727. Immediately before 1948 local authorities were providing mental hospitals and community services for the mentally ill under powers contained in the Lunacy and Mental Treatment Acts; mental deficiency institutions and community services for defectives under the Mental Deficiency Acts; public assistance institutions, including poor law infirmaries, and other forms of relief under the Poor Law Act 1930; and other general and special hospitals and health services under the Public Health Act 1936, and Public Health (London) Act 1936.

Under the Poor Law Act the Minister of Health exercised close powers of control and inspection over the residential and other services provided by the local authorities, and the services were regulated in detail by orders made by the Minister. The Public Health Acts gave the Minister of Health no specific power to inspect local authority hospitals but under his general powers under the Local Government Act 1929, he arranged for his medical and nursing officers to visit the hospitals and give advice on the services provided in them. The arrangements under the Lunacy and Mental Treatment Acts and Mental Deficiency Acts were more complicated and we describe them in greater detail in the two following paragraphs.

728. In the mental health field, from the early nineteenth century and particularly after the establishment of the Lunacy Commission in 1845, central authorities had extensive powers to inspect local authority and private and voluntary hospitals and homes, in addition to, though linked with, specific functions in relation to the admission, detention and discharge of individual patients. They also had general executive powers of control over local authority capital works and finance.

These powers were exercised partly by Ministers and partly by a non- Ministerial board of commissioners (from 1845 to 1913 the Commissioners in Lunacy and since 1913 the Board of Control). The original functions of the commissioners under the Lunacy Acts, apart from functions related to the detention of individual patients, were mainly to visit and inspect institutions provided by local authorities, private persons and charitable bodies. The Chairman of the Commission or Board was not a member of the government and was not directly responsible to Parliament for the work of the Commission or Board. (1)

From the outset, various executive functions such as the approval or making of Rules and Regulations and the approval of local authority contracts or plans were the responsibility of Ministers, not of the commissioners. The responsible Ministers were originally the Home Secretary and the Lord Chancellor. Later the Local Government Board also exercised some control over local authority expenditure on mental health services as part of their general responsibilities in relation to local government finance, particularly through the sanctioning of loans.

The Mental Deficiency Act, 1913, which transferred to the new Board of Control the functions under the Lunacy Acts previously performed by the Lunacy Commissioners, also gave the Board wide executive functions in relation to the new mental deficiency services, in addition to powers of visitation and inspection, the Home Secretary being responsible only for very general superintendence of the new services and for making Regulations.

In 1919, the Minister of Health succeeded to the functions previously performed by the Local Government Board and in 1920 he took over most of the functions previously performed by the Home Secretary under the Lunacy Acts and Mental Deficiency Act. In 1930 some, but not all, of the Minister of Health's executive powers under the Lunacy Acts were transferred to the Board of Control. The position immediately before the re-organisation under the 1944-48 legislation was that the Board of Control was responsible for the day-to-day supervision of all local authority mental health services, for the registration, (2) visitation and inspection of voluntary hospitals and institutions and private nursing and other homes, and for approving the rules of county and county borough mental hospitals and the regulations of registered hospitals.

2 Except for the licensing of provincial licensed houses. This remained, and still remains, the responsibility of the justices of the peace.

The Minister of Health (under the Mental Deficiency Acts) and the Lord Chancellor (under the Lunacy and Mental Treatment Acts) were responsible for making Regulations or for approving Rules made by the Board. The Minister of Health also had a general oversight over the work of the Board, was responsible to Parliament for estimates and finance, sponsored new legislation, and generally spoke in Parliament on questions of policy affecting the mental health services.

729. These arrangements bore the stamp of their origin in the early nineteenth century when experiments were being made in the constitution of new central departments responsible for the oversight of local authority services. Other bodies of commissioners were later superseded by central departments working directly under a Minister, or under a Board presided over by, or having all its functions exercised by, a Minister who was also a Member of Parliament. It was this system of a central department working under the direct control of a Minister sitting in Parliament which became accepted as the normal pattern for central government departments supervising the activities of elected local authorities. One reason why the Board of Control continued until as late as 1947 to exercise executive functions as a separate non-Ministerial department was no doubt the fact that, in addition to these executive functions, it also had semi- administrative semi-judicial functions in relation to the admission, detention and discharge of individual patients. But the continuation of this older form of governmental organisation was also both a sign of, and a continuing factor in, the administrative isolation of the mental health services which we discussed in chapter 9.

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733. As regards hospital services, the National Health Service Act, 1946, introduced an even closer relationship between the local and central administration. Under this Act the hospital services of the country are now planned on a national and regional instead of on a local scale, and the former voluntary hospitals and the hospitals previously owned by the local authorities are integrated into a single service financed by the exchequer The authorities who are responsible for the planning of hospital services over regional areas and for the day-to-day management of the hospital: locally are not elected local authorities nor completely independent boards but are regional hospital boards and boards of governors appointed b) the Minister and hospital management committees appointed by the regional hospital boards. The Minister has an overall duty to provide hospital and specialist services through the agency of these new boards and committees This has given the Minister of Health much greater authority and responsibility for all hospitals in the national health service (including mental and mental deficiency hospitals) than either he or the Board of Control had before 1948 in relation to the general hospitals, mental hospitals and mental deficiency institutions administered by elected local authorities. It is also a more direct responsibility than that which he has for the community health services provided under the National Health Service Acts by the local health authorities. But although the Minister has been made directly responsible to Parliament for the hospital and specialist services and is given wide powers to make regulations and give directions to the hospital boards and committees, under the administrative structure laid down in the Act the hospitals are not administered by the Minister's own officers but by the boards and committees appointed for this purpose, who appoint their own staff.

734. Although the National Health Service Act. 1946, gave the Minister of Health this direct and comprehensive responsibility for the supervision of the hospital service, no alteration was made in those provisions of the Lunacy and Mental Treatment Acts and Mental Deficiency Acts which make the Board of Control responsible for inspecting hospitals and institutions, including those now owned by the Minister and managed by his agents. There has thus been some inconsistency since 1948 between the position of the Ministry of Health as the government department responsible for the general supervision of all public hospital services, and that of the Board of Control as an inspecting authority in the mental health field. This inconsistency has been partly overcome by making the commissioners and inspectors of the Board also officers of the Ministry, so that they visit and inspect on behalf of both departments simultaneously. The commissioners and inspectors are however still generally regarded, particularly by the staff of the mental and mental deficiency hospitals, as officers of the Board rather than of the Ministry, and the question whether there should be a body of inspectors of hospitals working somehow independently of the Ministry of Health is one on which we received conflicting views from our witnesses.

(ii) Recommendations for the future

735. It is generally accepted that the proper central department to supervise mental health or welfare services provided by local health or welfare authorities is die department which approves schemes for all local authority services provided under the National Health Service Acts and the National Assistance Act, i.e. the Ministry of Health. This has been the position since 1948 for all local mental health services provided under the National Health Service Acts and Mental Deficiency Acts and would automatically apply to any new residential or other services provided in future under the National Health Service Acts or National Assistance Act. The form of control which we favour is that which operates under the National Assistance Act, under which the Minister has formal powers of regulation and inspection but in practice is able to rely mainly on informal methods of consultation and advice. In the mental health field, there should certainly be power for the Minister to make regulations as to the conduct and inspection of residential homes, hostels or residential training centres provided by the local authorities, under whatever Act they are provided. But we see no reason why standards should not be maintained in practice through a system of consultation and advice without detailed regulations actually being made. This has proved possible during the last nine years in regard to old people's homes which before 1948 were subject to rules and statutory orders under the poor law scarcely less formal or detailed than those which have operated up to now in the mental health field.

736. We therefore recommend that the Minister should be given power to make regulations to apply to any convalescent, after-care or other homes or training or occupation centres for mentally disordered patients which may be provided in future by local authorities under the National Health Service Acts, similar to his present power to make regulations under Section 35 of the National Assistance Act, 1948, including regulations as to inspection by the Minister's officers. The inspection of any homes for mentally subnormal children which local authorities might choose to provide under the Children Act rather than under the National Health Service Acts could be carried out under the Home Secretary's powers of inspection under the Children Act; we should expect the Home Office and the Ministry of Health to collaborate in arranging for inspections to be carried out by suitably experienced staff.

737. We now come to the question of the supervision and inspection of mental and mental deficiency hospitals. On this subject we received conflicting recommendations from our witnesses. Some witnesses (including the Ministry of Health and the Board of Control themselves) expressed the view that, now that the Minister of Health is directly responsible to Parliament for all hospital and specialist services within the national health service, he is the central authority responsible for standards of care of patients in psychiatric as well as other hospitals, and that it is neither necessary nor appropriate to place a separate and overlapping responsibility for inspection on some separate central Board. Other witnesses (including the Royal Medico-Psychological Association and the British Medical Association whose representatives included present or former medical superintendents of mental and mental deficiency hospitals) argued that inspectors independent of the Minister, who is ultimately responsible for the administration of the hospital service, would be able to express more independent opinions and would be readier to call attention to defects in the hospitals or to the way in which funds have been allocated. They consider that this would provide a more effective method of ensuring that the claims and needs of mental and mental deficiency hospitals within the national health service are not neglected or pushed aside and that the patients are properly cared for.

738. We have great sympathy with the desire of the medical and other staff of the mental and mental deficiency hospitals, and of their managing committees, to ensure the best possible service for their patients, and with their wish to retain the opportunities they have enjoyed in the past for intimate and friendly consultation with officers of a central department with a wide knowledge of the mental health service in all parts of the country. These are the objects which were clearly in the minds of those among them who urged the retention of the Board of Control more or less in its present form. But we think it is a misconception to suppose that the retention of a body of commissioners working independently of the Ministry of Health is the best way of achieving any of these objects. Of the two divergent views we have described we are convinced that the one which must be favoured is that put forward by the Board and the Ministry themselves.

Constitutional propriety and administrative coherence alike forbid the grant of authority to an independent Board to inspect services for which a Minister of the Crown is himself directly responsible to Parliament.

Any Ministry may find it convenient, as a matter of internal organisation, to differentiate its functions of inspection from its functions of administration and to make the two sufficiently independent of each other to ensure that the Minister is fully advised from both these somewhat different points of view. But this differentiation cannot be carried to a point where the inspectorate would report direct to Parliament or public over the Minister's head - and still less could this function be given to one section only of an inspectorate, to inspectors of mental hospitals as distinct from inspectors of other hospitals - without destroying the perspective of policy which it is the very purpose of departmental reports to convey to the Minister and, through him, to Parliament.

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742. There remains the question whether we should recommend the continuance of formal visits of inspection to psychiatric hospitals by medical and other members of the staff of the Ministry itself. It is not, we understand, the present practice of the Ministry, nor of the regional hospital boards, to make formal inspections of other hospitals. They obtain their knowledge of the needs and difficulties of particular hospitals in other ways, such as informal visits by medical, nursing and other officers, frequent consultation at all levels both by correspondence and by personal discussions with members and staff of boards and committees, discussion of particular proposals for expansion and development, and, when occasion arises, investigation of complaints received from patients, other members of the public and Members of Parliament. All this already applies to some extent to psychiatric hospitals as well as to other hospitals. We, as a Commission, have no detailed knowledge of how these arrangements compare in effectiveness with the more formal visits carried out by the commissioners and inspectors of the Board of Control, in their dual capacity as officers both of the Board and of the Ministry, though our general experience leads us to think that frequent consultation on specific subjects by officers of special experience is usually more profitable than a more formal general inspection. Our recommendation is that the Minister of Health should consider whether in view of the history and present needs of the psychiatric hospitals, there would be advantage in arranging for regular inspections of these hospitals to be carried out by suitably qualified officers on bis staff, in addition to less formal visits and other methods of consultation. In considering this question he will no doubt take account of the views put to us on behalf of some of the managing committees and staff of these hospitals in favour of the continuance of inspections by persons of high standing from the central department. Whether formal inspections are continued or not, we hope and believe that contacts with the Minister's staff will prove more frequent and effective and no less satisfying to the hospitals than the visits of the commissioners and inspectors of the Board of Control have been in the past.

743. The responsibility of the Minister and of the hospital boards and committees for the standard of care provided in the hospitals includes the investigation of complaints made by or on behalf of patients about any aspect of their care or treatment, including any complaints of ill- treatment by doctors, nurses or other members of the staff or fellow- patients. The investigation of such matters is part of the everyday work of the hospital authorities and the Ministry of Health. When the complaints come from mental patients, there is more difficulty in distinguishing well- founded from imaginary complaints. Hospital authorities and the Minister and his officers need to be careful not to be too ready to accept allegations from patients who may be deluded or malevolent, nor on the other hand to reject complaints simply because they are made by patients whose minds are to some extent disordered. For this reason the hospital management committees of psychiatric hospitals must be specially careful to investigate all complaints impartially. When an investigation from outside the hospital is called for, regional hospital boards and the Minister have a similar responsibility, and when there is prima facie evidence that the complaint may be well-founded they can often investigate it most effectively by appointing one or more persons (not necessarily their own members or officers) to hold an investigation locally on their behalf.

744. In the past it has been one of the functions of the Board of Control to conduct enquiries of this sort. They have special powers and duties under the Lunacy and Mental Treatment Acts and Mental Deficiency Acts in connection with the permission or prohibition of certain forms: of physical restraint on patients, the holding of enquiries on oath and the institution of proceedings against members of the staff of hospitals who are accused of maltreating patients. In our view it is preferable that enquiries should be held by or on behalf of those authorities who have .power to take disciplinary action should the complaints be substantiated, or to exert other forms of pressure to prevent a recurrence. This is customary in other public services. Enquiries into allegations of malpractices in children's homes, approved schools or prisons, for example, which call for investigation by a central department, would be made at the request of the Home Secretary by persons appointed by him and reporting to him. In relation to hospitals the appropriate central authority is the Minister of Health, and it is no longer necessary for this purpose to retain a separate organisation such as the Board of Control.

Duties in connection with procedures applied to individual patients

(i) General

745. The central departments' functions in connection with the admission visitation and discharge of individual patients are mainly connected with the procedures which authorise detention, though some apply to voluntary patients also. They are mainly carried out by the Board of Control, though some are governed by Rules or Regulations made or approved by the Minister of Health or Lord Chancellor. The most important of these functions of the Board are the scrutiny of admission documents, their duties in connection; with the continuation of orders, their powers and duties to visit patients in hospital and elsewhere, and their powers of discharge (for details see Appendix II). They also give general advice to hospitals and local authorities on questions arising on any aspects of the present procedures, and deal with a considerable amount of correspondence from patients, discharged patients and patients' relatives. The Lord Chancellor also still has some general powers an regard to " persons of unsound mind ", as well as having general administrative responsibility for the Court of Protection which deals with the management of patients' property and the (now rare) inquisition procedures.

746. Our recommendations in Part IV of our report would reduce the use of compulsory powers and procedures, abolish special procedures when compulsory powers are not used, and simplify the compulsory procedures themselves. An important feature of the new procedures would be that several functions now discharged centrally would be performed locally. Power to discharge detained patients would be held by the medical staff and members of the hospital and local health authorities and in most cases by the patient's nearest relative also, and local Mental Health Review Tribunals would be set up with powers of discharge on specific occasions. It is necessary to consider what powers and responsibilities should be given to a central authority under this system, and what form of central administration would be appropriate. In considering this and comparing possible future arrangements with the present system we must bear in mind that most of the functions of the Board of Control under this heading derive from the functions first given to the Commissioners in Lunacy in the middle of the nineteenth century, which have been only slightly affected by the changes in the relationship between the local and central authorities and the new methods of care and treatment which have developed since then. In the following paragraphs we discuss various functions which are now carried out centrally, and give our views on how and by whom they should be discharged in future.

(ii) Scrutiny of documents

747. The documents which are at present sent to the Board of Control include copies of all the statutory admission documents for certified and temporary patients in mental hospitals, registered hospitals, licensed houses and single care and for defectives in mental deficiency hospitals, certified institutions and guardianship, special reports and certificates when an order is to be continued, and notices of transfer, discharge or death. Notices of the admission, departure, discharge or death of voluntary patients and of defectives in approved homes are also sent. We have been told that an average of about 5,000 documents a week are received by the Board, of which about 2,100 a week (about 110,000 a year) are scrutinised by a medical or legal commissioner of the Board and by clerical staff.

748. On the question whether this central scrutiny of documents should continue in future we received conflicting recommendations from our witnesses (see paragraph 263), but the disagreement is only about the best administrative methods of achieving aims on which all are agreed, namely that compulsory powers should not be used except under the conditions allowed by the law and that there should be adequate documentary authority for their use in each individual case.

749. The validity of the documents on the strength of which compulsory powers are used may depend on several questions. One is whether the facts related in them about the patient are true and whether the medical diagnosis and recommendation for a particular form of care accurately describe the individual patient's mental condition and needs. This is partly a question of fact, partly a question of medical opinion. No routine scrutiny of the documents alone by a person who has not examined the patient can provide any check on their accuracy nor any safeguard against the deliberate submission of false documents or against errors of information or of diagnosis. In so far as the central scrutiny of documents may have come to be regarded as a safeguard for the patient from this point of view, we should make it clear that this is quite illusory. The safeguards against the deliberate falsification of documents or factual and diagnostic errors are the integrity and competence of 'those who sign the documents, the need for a consensus of several opinions, the provision of opportunities for re-examination by independent persons qualified to judge the questions at issue, and wide powers of discharge. We consider that the new procedures proposed in chapter 7. would introduce much stronger safeguards of this sort than exist at present.

750. There are however other questions on which the validity of the documents may depend, which can be judged from a scrutiny of the documents themselves. These are whether the facts and opinions recorded in them, if assumed to be accurate, provide proper grounds for the use of compulsory powers within the terms of the law, and whether the documents are complete in the form required by law and contain no technical flaw. At present, if the Board of Control considers that a medical certificate does not contain sufficient evidence of unsoundness of mind or mental defect, or that a medical certificate or other admission document is incomplete or imperfect in any way, and if it is not amended to the Board's satisfaction within a fixed period after the patient's admission, the Board may, if it thinks fit, order the patient's discharge. When the Board considers that any admission document or special report or certificate is defective, it asks for more evidence of unsoundness of mind or mental defect to be added, or for blanks on the forms to be completed, signatures added, dates altered or other technical flaws to be corrected. We were told (1st Day, P. 22. para. 98 and Q. 186) that it is rare for this to result in the discharge of the order; the usual result is the amendment of the document to a form in which it satisfies the Board as providing proper authority for the patient's detention or control. The main effect of this scrutiny therefore is to act as a safeguard for the hospital authorities against detaining a patient without proper documentary authority.

751. In our view, it should be made clear in future that the primary responsibility for ensuring that there is proper documentary authority for the use of compulsory powers lies with those who use those powers and who would be responsible if they were improperly used, that is to say, the hospital authorities and local health authorities and their officers and any private individuals who accept the responsibilities of acting as guardian. The admission documents, under our proposals, are to be regarded as authority to admit the patient, not as an order to admit him. The responsibility for deciding to admit and detain the patient will lie with the hospital authority (or the guardian), and it must equally be their responsibility to see that they have adequate authority for doing so. They should not leave this to the judgment of some other body, central or local.

(iv) Power of discharge and visits to patients

765. Our proposals in chapter 7. would increase the powers of discharge which could be exercised locally. In most cases, we should expect patients to be discharged by the medical staff of the hospital as soon as they are fit to leave; similarly, patients would be discharged from guardianship by the medical staff of the local health authority. Relatives would have power to discharge patients at any time except when this right is withheld on the decision of a court, or when the patient is considered dangerous to himself or to others, or when the patient was originally admitted following court proceedings or on transfer from prison or approved school. The patient and relatives whose power of discharge is withheld would have access to members of the hospital management committee or local health authority who would have power to discharge the patient at any 'time (or to recommend discharge to the Home Secretary in cases in which his consent is required), and on specific occasions patients and relatives would have access to Mental Health Review Tribunals. In some cases, no doubt, these bodies would decide to discharge the patient; we hope that when they decide not to they would explain their reasons in such a way that the relatives, at least, would accept their decision as reasonable and would not wish to carry the matter further. Indeed, it might be argued that these local powers of discharge are enough, and that if all these persons locally are agreed that the patient should not be discharged there is no need for any further review.

766. In our view, however, these powers of discharge alone would not be quite sufficient. Our proposals in chapter 7. allow access to the Mental Health Review Tribunals on specific occasions only. Patients would have access to them once in the first six months after admission and after that only at the time of the renewal of compulsory powers ; for patients who had already been four years in hospital (other than adult psychopathic patients) this would be only once in three years. Relatives whose 'power of discharge has been withheld and adult psychopathic patients would have access to a tribunal once a year. We think it right that there should be some public authority, in addition to the hospital authorities and local health authorities themselves, who would have a continuing power to discharge patients at any time. This is particularly important for patients who have no relatives or whose relatives seldom visit them or do not want them to come home. It would in effect provide a continuing opportunity of appeal from the decisions of any medical superintendents and members of hospital management committees who might be unnecessarily cautious in using their own powers of discharge. It is also desirable that patients who are compulsorily detained should have an opportunity, if they wish, of interviews with visitors from outside the hospital, in addition to the opportunity of interviews with members of the hospital management committee.

767. One possible way of arranging this would be to give a continuing power of discharge and visitation to the Mental Health Review Tribunals, as well as the duty to hold full investigations on specific occasions. This would however completely alter the character of the tribunals as we envisage them. They would have to deal with a much greater volume of correspondence from patients and patients' relatives, which would include not only some requests which would require full investigation but also many others from or about patients whose cases the tribunal would already have investigated or whose need to remain in hospital was not in doubt. Many mentally ill patients write frequent letters and should certainly not be deprived of this outlet for their feelings. Any public authority which has a continuing power of discharge must expect to receive such letters and to answer them, using discretion in deciding how often to make fresh enquiries from the hospital authorities. Moreover, if members of the review tribunals were to be given the duty of visiting patients on request, they would have to be prepared to make frequent visits, many of which would be to patients who were clearly quite properly detained. It would foe asking too much to expect busy people of the calibre we hope will be willing occasionally to undertake the sort of investigations we discussed in chapter 7 to spend much time on this other work. It would probably be necessary to appoint a few salaried members of the regional panels to do this work either full-time or regularly part-time, and they would need some full-time clerical staff. In effect, the tribunals would cease to be solely ad hoc investigating tribunals and would become small permanent public offices, whose members would from time to time conduct full-scale enquiries on applications for discharge but some at least of whom would also have regular administrative duties. They would become part of the everyday administrative machine. They would be, as it were, small regional Boards of Control. We think this would foe a mistake. One of the main objects of our proposal to establish these tribunals is to ensure that at certain specific intervals, at the request of the person whose wishes have been overruled, the justification for the use of compulsion should be thoroughly reviewed by an independent body which has not previously had any connection with the case. The special nature of these reviews would be seriously impaired if the complainant had already applied to the same foody for discharge, or had been visited by some of its members, and had had his requests rejected, in the intervals between the special reviews. It would also, in our view, affect the general approach of the review tribunals to their work. As we mentioned in paragraph 453, we do not want the members of the tribunals to be people who are continually considering requests for discharge as a matter of day-to-day routine, many of which they must inevitably reject. The duty of holding these special reviews should be separated from the day- to-day administrative responsibilities which a continuing power of discharge and visitation inevitably entail.

768. Another objection to giving these responsibilities to the Mental Health Review Tribunals is that it might create difficulties between them and the hospitals or local health authorities. It is important that the staff and members of these authorities should be recognised, and should recognise themselves, as the authorities primarily responsible locally for the proper care of their patients including questions which arise from the use of compulsion, and for seeing those who wish for personal interviews and for considering applications for discharge. If similar functions are to be given to another public authority as well, as an extra safeguard for the patients, it must be done in such a way as not to detract from this responsibility. We see no objection from this point of view to applications for discharge being referred to local review tribunals on specific occasions at fairly long intervals. But if the tribunals were to hold a continuing power of discharge and visitation, there would, we feel, be a real danger that some hospital or local health authorities might resent this duplication of function and feel that their responsibilities were being undermined, while others might tend to rely too much on the tribunals and pay too little attention to their own responsibilities for these matters. The latter is perhaps the greater danger. These dangers should foe less acute if the powers are given to a central rather than another local or regional body, and if it is made clear that they are reserve powers which should not often have to be used if the hospitals and local health authorities are using their own powers in the way they should.

769. In a service such as the national health service which is organised on a national basis, it would be natural to expect that the authority holding this power to visit and discharge patients who are dissatisfied with the decisions of the responsible authorities locally would be a central authority. There is also the consideration that a central authority holding these powers could review decisions of the review tribunals, as well as decisions of the hospital and local health authorities, by arranging for a fresh enquiry to be held if there seems reason to think that a tribunal has gone wrong on some question of principle or was not in possession of all the relevant facts.

770. For all these reasons, we think it .best that a continuing reserve power of discharge and power to visit patients on request should be given not to the Mental Health Review Tribunals but to some central authority which could undertake the administrative work mentioned in paragraph 767 and which could also arrange for a formal enquiry to be held when it appears necessary to do so. In our opinion the proper authority is the Minister of Health.

771. The Ministry of Health and Board of Control themselves recommended to us that the power of discharge should be vested not in the Minister but in independent central commissioners who should be appointed by or on the nomination of the Minister of Health ; such commissioners might also hold appointments on the staff of the Ministry, but they should exercise the power of discharge by independent authority to be conferred on them by statute (1st Day, P. 29, para. 136; 23rd Day, Q. 4701-4713). Some other witnesses suggested that central commissioners holding the power of discharge should come under the aegis of the Lord Chancellor and work quite independently of the Ministry of Health (20th Day, Q. 3947-3961; 24th Day, P. 930, para. 78, and Q. 4910-13). Our reasons for differing from these recommendations are explained in the following paragraphs.

772. In formulating our own opinion we have taken into account the fact that under the-system we recommend for the future there would be the new local Mental Health Review Tribunals which would provide an opportunity for regular reviews locally by people independent of the administrative authorities responsible for the care and detention of the individual patient in each case. This should reduce the volume of work falling on the central authority and would also alter the way in which that work might be handled. In future the central authority should normally receive applications for discharge only when this has already been considered and rejected by the hospital or local health authorities and often by a Mental Health Review Tribunal as well. We envisage that ordinarily the central authority should refuse to consider a case until application has been made to the medical staff and members of the hospital or local authority and to a tribunal when there is a right to go to one. We should then expect the central authority to ask the hospital or guardian for copies of the documents authorising the use of compulsion, for information about applications for discharge already considered locally and the reasons for their rejection, and an up-to-date medical report. If a Mental Health Review Tribunal has recently investigated the case and if there is no suggestion of a material change in the circumstances since that investigation, and if the tribunal's reasons for deciding against discharge appear sound, the central authority should ordinarily not make any further enquiry. Otherwise, we consider it desirable for the patient always to be interviewed personally on the first occasion on which he or his relative applies to the centra! authority for discharge. If it appears that a tribunal has gone wrong in some matter of principle or has not ascertained all the relevant facts, or if the case has not recently been considered by a review tribunal and there appear to be prima facie grounds for a full enquiry, the central authority should arrange for a fresh enquiry to be held. We should also expect any .patient who asks for a visit (as distinct from discharge) to be visited soon after die first request for such a visit is received. This would often mean making visits to hospitals specially to see such a patient. We do not think it right (as sometimes happens at present) that patients should be told that they will be interviewed on the commissioner's next visit and for this to be left over until the next routine visit to the hospital which may be several months later. The central authority should, however, have more discretion in deciding whether or not to visit a patient the second or subsequent time he asks for a visit or applies for discharge. The central authority would receive a considerable amount of correspondence from .patients who are clearly mentally ill and who write frequently, and it should not be required to arrange visits nor to make enquiries from the hospital or guardian every time a patient writes. But whether or not a personal visit is paid, we consider that the actual decision for or against discharge should generally be taken by or on the advice of at least three persons, including at least one medical and one non-medical; the decision should not be taken by or depend on the advice of a single person, whether medical or not.

773. Much of the work falling to the central authority would be of a routine nature, and much of the time of its staff would be spent on visits to patients who would be found to be quite properly detained. M this were to be made a full-time job it would not be likely to attract medical or non-medical officers of the requisite calibre, certainly not people of the experience and standing who would be needed on the rare occasions when a full enquiry is to be held which might reverse the decision of a Mental Health Review Tribunal. In order to add interest to the work it would be desirable for most if not all of those undertaking it to spend only part of their time on this work and to have other duties also.

Whether the power of discharge is given to the Minister of Health (as we recommend) or to commissioners acting in an independent capacity, the day-to-day work of visiting patients and determining applications for discharge which do not appear to call for a full enquiry would need to be carried out by medical and non-medical officers employed regularly on this work for part of their time, with a secretariat to deal with correspondence. Enough officers should be appointed to this work to enable them to visit patients in any part of the country soon after the application for a visit or for discharge is received, to consider and determine the majority of the requests for discharge and to have time for other employment as well. It would clearly be convenient if they could have other regular part-time work in a department where they would all work together, and where the secretariat could also be located.

775. Arrangements would also have to 'be made to deal with requests for discharge which appear to need a full investigation. If the power of discharge were to be held by independent commissioners, there would have to be some senior commissioners of high standing (both medical and non- medical) to conduct such investigations. It would be convenient for at least one medical and one non-medical senior commissioner to be regular part-time commissioners with other part-time work in the same department as the junior commissioners and the secretariat so that they would be available for easy consultation. Other senior commissioners might be persons who are not full-time civil servants, who could be called on to investigate individual cases when required, such as medical or non-medical members or staff of hospital boards or committees or doctors in private practice or persons engaged in other forms of public service. If the power of discharge were to be given to independent commissioners, we would consider it desirable that enough people not on the staff of any government department should be appointed as senior commissioners to enable an enquiry to be conducted entirely by such commissioners if this appeared desirable in any individual case. If the power of discharge were held by a Minister, however, a wider variety of methods of investigation would 'be available. Often the most suitable course might be for the Minister to refer the case to a Mental Health Review Tribunal for investigation or re-investigation. Alternatively, 'he could appoint one or more persons of suitable qualifications and standing to investigate and report to him; such persons might be experts in some branch of medicine or have high legal or other qualifications. Occasionally a public enquiry might be desirable to deal adequately with the case or allay any public suspicion or uneasiness. Power to refer a case to a Mental Health Review Tribunal would have to 'be conferred on the Minister by the legislation establishing those tribunals; power to arrange other forms of enquiry is a power incidental to the position of any Minister.

776. We do not consider that it would be appropriate for the power of discharge to be given to the Lord Chancellor or to commissioners working part-time in one of the departments for which he is responsible. In our view the Lord Chancellor should no longer be expected, or indeed empowered, to exercise administrative responsibility for the care or control of mental patients as distinct from the care and control of their property. In practice he has already relinquished almost all his active concern with these matters, apart from his general responsibility for the Court of Protection. We mentioned in paragraph 255 that he, together with the Judges of the Chancery Division, is entrusted with the care and commitment of the custody of persons found to be of unsound mind by inquisition and of their estates. It was suggested to us by several witnesses that this ancient procedure, which is now very seldom used, should be abolished. We certainly think the inquisition inappropriate in the twentieth century as a method of obtaining authority to compel a patient to accept care or treatment, and our recommendations in chapter 7. imply its abandonment for this purpose. We were glad to learn from the Master in Lunacy (29th Day, P. 1193, para. 18, Q. 5907-5910 and 5996-7) that he agreed that it could well be abolished altogether, provided that appropriate consequential amendments are made to those parts of the law which form the basis of the jurisdiction of the Court of Protection and of receivers in receivership cases, and provided that the position of committees in existing inquisition cases is preserved. The Lord Chancellor at present also has some statutory powers under the Lunacy and Mental Treatment Acts in regard to the care and visitation of persons of unsound mind. Many of these are now seldom exercised. Most of them would clearly be inappropriate to the Lord Chancellor under the general system of local and central administration which we recommend in chapters 10 and 12. and in the earlier part of the present chapter, except in so far as powers of visitation are needed in connection with the control of patients' property. The legal and medical Visitors whom the Lord Chancellor appoints under Section 163 of the Lunacy Act, 1890, are in fact chiefly occupied in visiting persons whose property has been, or is proposed to be, put under the control of the Court of Protection, and in making reports to that Court on any questions on which the Court requires information for the proper exercise of its duties in relation to patients' financial affairs. We have not regarded it as within our terms of reference to enquire in detail into the parts of the law and administration which deal with the protection and control of patients' property. In general, however, it seems to us right that these matters should be dealt with separately from the administration of the health and welfare services provided (or to be provided under our proposals) under the National Health Service Acts and National Assistance Act, and we assume that they will continue to be dealt with by the Court of Protection, with the Lord Chancellor as the responsible Minister. Under our proposals this would be the Lord Chancellor's only remaining active responsibility in the field of mental health (apart from the appointment of the members of the regional (panels for Mental Health Review Tribunals.)

The suggestion that commissioners holding the power of discharge* might be attached to one of the Lord Chancellor's departments becomes in effect therefore a suggestion that they should be attached to the Court of Protection, or should undertake work for the Court for part of their time. We think that this is inappropriate in principle and also that it would not provide a satisfactory practical solution. We consider it important that the question whether a person needs treatment in hospital, and whether the use of compulsion for that purpose is necessary, should be kept quite separate from the question whether he is mentally capable of managing his own financial affairs. (We mention this also in chapter 13). The fact that these two questions are in most cases determined quite separately under the present system is often not appreciated even by patients and their relatives. We think this distinction should be emphasised. To attach commissioners holding the power of discharge to the Court of Protection would undoubtedly blur it. Moreover, if independent commissioners are to have other part-time work of a more varied and constructive character which would make their job more attractive, it must be work suited to the type of knowledge and experience which will be needed for the work of a commissioner. The type of people who would be qualified to undertake the work of a commissioner would be doctors, experienced social workers and other persons with special knowledge of the health and welfare services. Suitable employment for such persons would be available in the Ministry of Health, but is not likely to be found in connection with the work of the Court of Protection. Even if their work were to be combined with that of the Lord Chancellor's Visitors (if there were no other objections to such a course), this would not provide work for the number of medical officers who would be required to act as junior commissioners, nor for any commissioners without medical or legal qualifications though persons with other forms of experience in the health or welfare services would make very valuable junior commissioners and should certainly be included among their number if such commissioners are to be appointed at all.

If there are to be independent commissioners who would also have other work in some government department, by far the most suitable department would be the Ministry of Health (as that Ministry and the Board of Control themselves suggested to us). The work which the exercise of the power of discharge would entail would be closely related to the work which arises from the Minister's general responsibilities for supervising the hospitals and the local health and welfare services. The use of compulsory powers is one aspect, though a peculiar one, of the services provided for the care of the patient, for which the Minister has general executive responsibility. The staff of the Ministry must in any event include psychiatrists and other medical officers, nursing officers, welfare officers and other specialist staff, as well as administrative and executive staff, many of whom must have the same qualifications as would be needed for the work of a commissioner and whose work in the Ministry would be likely to add variety and interest to the job.

779. We think it would be possible to operate a system by which commissioners holding a continuing power of discharge in their own right and the duty to visit patients in connection with this power would hold dual appointments as commissioners and as officers of the Ministry of Health, with a few other senior commissioners who would not hold such dual appointments. Under such a system the commissioners would act as individuals, taking personal decisions on individual cases referred to them. They would have no corporate functions, and would not be responsible for the formulation of policy or for giving advice to hospitals or local authorities or for the management of any hospitals. There would therefore be no need for them to be constituted as a corporate Board. Commissioners acting in a dual capacity under this system should not have any difficulty in distinguishing between their work as officers of the Ministry and their independent responsibilities as commissioners. We accept the evidence of the Chairman of the Board of Control that he and the other senior commissioners have had no difficulty in the last few years in acting quite independently when considering applications for discharge (23rd Day, Q. 4700).

Nevertheless, we see important objections to such a system. In the first place, it seems to us an unnecessarily cumbersome piece of administrative machinery, bearing in mind that the number of cases referred to the central authority should be much smaller than at present. Secondly, it would allow Jess flexibility in dealing with cases which call for a full enquiry, as we pointed out in paragraph 775. Further, it does not seem to us appropriate that a discretionary power such as the power of discharge should be held by commissioners of this sort acting in their own right. There is no inherent objection to powers being conferred on civil servants in their own right, but this is appropriate only when strict principles can be laid down to" which their decisions must be subject, as is the case for example with district auditors and special commissioners of income tax. No precise criteria can be -laid down to govern the use of this power of discharge, and occasionally (though only occasionally) its exercise would involve an enquiry which would in effect amount to the consideration of an appeal from the decision of a Mental Health Review Tribunal. The exercise of a discretionary judgment of this nature is, in our opinion, proper only to a higher court or tribunal or to a Minister of the Crown. A continuing power to discharge patients, with the routine administrative work which it would involve, could not appropriately be given to a court of law. Nor do we wish to propose a central appellate tribunal similar in composition to the local review tribunals. It is not necessary to provide for a regular right of appeal from the decisions of the local review tribunals (except on points of law, on which we have proposed a right of appeal to the High Court), as the review tribunals themselves would be reviewing decisions originally taken by others; only occasionally would it be desirable to review a case already fully investigated by a review tribunal. The main work falling on the central authority holding the power of discharge would, as we have already pointed out, consist of dealing with correspondence and visits to patients about whose need to remain in hospital there is no reasonable doubt. But this routine work would have to be combined with the power to exercise discretionary judgment in regard to applications for discharge which, occasionally, might require the holding of a formal enquiry at a high level, The proper authority to exercise such a power seems to us to be a Minister of the Crown.

781. We do not consider that objection can properly be taken to vesting the power of discharge in a Minister on the ground that this would give a member of the executive control over the liberty of individual citizens. The power of discharge would give the Minister power only to release people from detention and control. In no circumstances would he be able to order a patient's detention. Nor would the Minister be the main discharging authority, as the Board of Control is under the present Mental Deficiency Acts. He would be able to order discharge, but not to prevent discharge by others. The patient could be discharged at any time by the medical staff or members of the hospital or local health authorities, and in most cases, by his nearest relative also, irrespective of the views of the Minister. The Mental Health Review Tribunals would also be able to discharge the patient the next time his case came before them, even if discharge had been refused by the Minister.

782. We have also considered the possible objection that if the Minister held the power of discharge he might be subjected to undesirable political pressure on individual cases. Even at present, although he himself has no power to order discharge, the Minister of Health may be asked questions in Parliament about the discharge or licence of individual patients, and he receives and answers many letters from Members of Parliament on this subject. At present he normally confines his replies to reporting the facts of the case and the decisions taken by the hospital management committee or Board of Control, which he has no authority to overrule. If he himself held the power of discharge he might be exposed to slightly stronger pressure. It must be remembered however that many Ministers have powers and duties of a quasi-judicial nature, and it does not appear that their liability to be questioned in Parliament is in any way an embarrassment. The Home Secretary's responsibility for prisons, borstals and approved schools includes certain powers in relation to the discharge or release on licence of individual persons, and at present he alone holds the power to discharge Broadmoor patients. It appears to be accepted that the merits of a particular case are not a proper subject for detailed public discussion. On requests for discharge the Minister would still need to take medical and other advice, and we feel confident that he would not be subjected to unreasonable pressure after taking a decision in the light of such advice, or that if he were he would be able to withstand it by relying on that advice.

783. The fact that the Minister of Health has executive responsibility for the health services does not disqualify him from exercising the power of discharge; on the contrary, it makes him the appropriate Minister to do so. As we pointed out in paragraph 778, the work arising from the power of discharge would be closely related to the Ministry's other responsibilities. Before 1948 the Board of Control exercised executive functions as well as its present duties in regard to individual patients. The power to visit patients and the reserve power of discharge, as well as all other functions in regard to the mental health services which need to be discharged centrally, should now also be held by the present central executive authority, the Minister of Health. This would provide the most coherent administrative system, and would also accord with the principle which we have emphasised in other connections, that there should be as few distinctions as possible between mental health services and other parts of the national health service.

784. We therefore recommend that a continuing power to discharge patients from compulsory powers (except during periods when discharge is subject to the Home Secretary's consent as proposed in 6 and 7) should be held by the Minister of Health. The procedures to be used in considering applications for discharge should not be laid down by law, but the Minister should be given power to refer cases to the new Mental Health Review Tribunals when he considers necessary. We should expect the work of visitation and the consideration of applications for discharge which do not call for a formal enquiry to be undertaken by medical and non-medical officers of the Minister's staff of no less seniority and experience than those who would have been suitable for appointment as junior commissioners under the alternative system discussed in paragraphs 774-779.

State Institutions

785. Before 1948, Rampton Hospital and Moss Side Hospital for defectives of violent or dangerous propensities were owned and managed by the Board of Control. Broadmoor Institution was owned by the Home Secretary and managed on his behalf by a council of supervision. In 1948 and 1949 the ownership of these three hospitals was transferred to the Minister of Health. But, unlike other hospitals owned by the Minister, their management is not in the hands of hospital management committees appointed by regional hospital boards nor are they directly managed by the Ministry itself. They are managed on behalf of the Minister by the Board of Control. The admission and discharge of individual patients at Rampton and Moss Side are controlled by the Board of Control, and of patients at Broadmoor by the Home Secretary.

786. It is perhaps barely within our terms of reference to recommend whether these hospitals should continue to be managed by a centrally appointed committee or not. All questions affecting Broadmoor patients are clearly outside our terms of reference. As regards Rampton and Moss Side, however, we feel it right to point out that the new compulsory procedures recommended in Chapter 7 will lay on the managing committees of individual hospitals powers and responsibilities in relation to the detention, visitation and discharge of patients quite separate from those of the central authority. We have also stressed the importance of members of managing committees being freely accessible to patients and their relatives, especially when the relative's own power of discharge has been withheld. The patients in Rampton and Moss Side Hospitals probably present more difficult problems than those at any other hospitals in the country. This makes it all the more important for members of the managing committee, as well as the medical superintendents, to be personally accessible to patients and their relatives who have grievances. If at all possible they should be given a personal hearing, and in reply personal explanations are preferable to formal official letters. It seems clear that this will require fairly frequent attendance by members of the managing committee at the hospitals themselves, so that they can see visiting relatives who wish to see them as well as being easily accessible to the patients. This seems to imply that, whether the committee is centrally or locally appointed in future, some at least of its members should be people living within a reasonable distance of the hospital who would have sufficient time to give to this important aspect of the committee's work. In any event, no managing committee should be wholly identical with the persons advising the Minister on applications for discharge or authorised to exercise the power of discharge in their own right. Whatever arrangements are made for the exercise of the central power of discharge, all applications should be considered by persons unconnected with the hospital in which the individual patient is detained who should be able if necessary to reverse the decision of the managing committee of the hospital.

787. We therefore recommend that the Minister of Health should consider whether it would now be suitable for these hospitals to be brought within the normal national health service administrative system, or whether they should be directly administered by one or more specially appointed committees. If he decides on the latter, the members of the committees should include some local members, and no member should be called on to decide or advise on applications for discharge addressed to the central department by patients in these particular hospitals.

The Board of Control

788. The proposals made in this chapter and in Chapter 12 would involve die abolition pi the Board of Control. There are always regrets when changing conditions make it necessary to wind up or reduce the functions of an organisation which has served its .purpose well and earned the respect and affection of those who have 'been closely connected with it. These regrets should however be mixed with satisfaction when the reason for the change is to carry on the objects of the earlier organisation by new methods-which are thought likely to be more effective in changed conditions. The objects of our mental health legislation and of those who have operated the mental health services have not changed during the last hundred and fifty years. These objects have always been and still are to provide the best available care and treatment for mentally disordered patients, to protect the general public, and to guard against abuse of the compulsory powers which may be needed for either purpose. But during this long period advances in medical knowledge, new methods of treatment and the development of new organs of government and new social services have naturally demanded changes in the medical and administrative methods by which these objects are pursued^

789. Radical changes were made in both the local and the central administrative organisation of the mental health services in 1947-48 when these services took their place as an integral part of the general health services of the country. It was then that the Board of Control handed on to the Ministry of Health its functions as the central department responsible for the general supervision of the mental health services as distinct from the procedures applied to individual patients. Continuity in administration was well preserved by the arrangements by which the people who had previously exercised these responsibilities as members or staff of the Board continued to carry them out as officers of the Ministry, and at the same time continued in their former capacities to carry out the functions still vested in the Board. So smooth was this transition that we doubt if it is fully realised even now by some of those working in the mental and mental deficiency hospitals how much of the day-to-day work of the people whom they know as senior commissioners of the Board has in fact been performed since 1947-4& in their capacity as officers of the Ministry and will remain unaffected by our proposals.

790. Our main task has been to review the parts of the law which give the Board of Control functions concerned with the liberty of the subject and the procedures applied to individual patients, which were substantially unaffected by the 1944-48 legislation and which date from an earlier period. In Part IV of this report we recommended changes of procedure and administrative method which we think desirable in order to bring these aspects of the law up to date. We hope we have made it clear that in our opinion the chief safeguard against the abuse of compulsory powers is not to allow their use at all except when they are really necessary, and to make all forms of treatment available without the use of compulsion. The present general attitude to mental disorder and present-day methods of treatment make this possible over a wide field. Even if in other respects the present procedures when compulsion is used were to remain unchanged, this change alone would substantially reduce the amount of work falling on the Board of Control, especially in relation to the patients now classified as mentally defective. Our other general recommendation which most affects the functions of the central' departments is that the misuse of compulsory powers is now more likely to be prevented by increased opportunities for review and discharge locally, with reserve powers at the centre, rather than by concentrating control in the central department. This also is a reflection of the great changes which have taken place since the days when the Commissioners in Lunacy were first appointed over a hundred years ago. We also consider it more appropriate now that a reserve power of discharge and visitation should be held by a Minister of the Crown than by a non- Ministerial Board of public servants.

791. Those who have taken part in the work of the Board of Control may well look back with pride to the part which the Board has played since 1913 in the development and improvement of our mental health services during a difficult period. We hope that they, and all who know what valuable work they have done, will welcome our recommendations for a different future organisation, which should make it possible to pursue the same general aims by methods more suited to the conditions of our time.


Subsequent notes

1960

section 2 of the Mental Health (Scotland) Act created a Mental Welfare Commission for Scotland and (by section 3), when it was established the existing General Board of Control for Scotland ceased. Its property passed to the Mental Welfare Commission and its rights, liabilities and obligations passed to the Secretary of State.

The Mental Welfare Commission for Scotland was established with between 7 and 11 commissioners but (1976) "Two full-time medical commissioners along with the Commission's medical officers, do much of the day-to-day work of the Commission and undertake most of the routine visits to hospitals".

1976 A Review of the Mental Health Act 1959

"The Royal College of Psychiatrists has suggested that commissions similar to the Mental Welfare Commission of Scotland should be established in England and wales since they regret that the Board of Control was not replaced by a body of comparable functions"

1978 Review of the Mental Health Act 1959

Other safeguards

6.31 The Consultative Document (paragraphs 8.38 to 8.48) discussed a number of other suggestions for further safeguards for patients - the Butler Committee's suggestion of a scheme of 'patients' friends'; the Royal College of Psychiatrists' suggestion of a Mental Welfare Commission on the lines of the Scottish one; and MIND's suggestion of an advocacy scheme.

Since the 1959 Mental Health Act there have been a number of developments aimed at improving the position of patients, many of them for patients in general but including those suffering from mental disorder. Notable among these are the introduction of Community Health Councils and of the Commissioners for Local Government and the NHS (the Ombudsmen). Another is the Health Advisory Service (formerly called the Hospital Advisory Service) with its special remit in relation to psychiatric services. In addition, there are the Davies Committee's recommendations for improving complaints procedures. A Development Team for the Mentally Handicapped has also been set up, though this is concerned with advice on services rather than patients' individual rights. The Consultative Document suggested a further safeguard by means of a scheme of patients' advisers whose function it would be to advise patients of their rights generally and about procedural matters, for example the proper way to make any complaint that they have and how to apply to a Mental Health Review Tribunal. The Document suggested that a limited number of trial schemes might be set up and their usefulness evaluated.

6.32 There was much support for this suggestion, but not for a formal advocacy system which was generally regarded as unwarranted. The appointment of patients' friends for all detained patients also lacked support - for the reason which the Butler Committee itself acknowledged, that it would be extremely difficult to find enough interested people of the right calibre.

6.33 There was also only limited support for the establishment of mental welfare commissions on the lines of the Scottish Mental Welfare Commission but since this is an arrangement which seems to be functioning well in Scotland it is perhaps necessary to explain in more detail why the Government does not propose to introduce such a scheme in England and Wales. Those who favour the introduction of mental welfare commissions argue that it is not realistic to have common arrangements for safeguarding the position of psychiatric patients and other NHS patients since much of the psychiatric service is, and will continue for some time to be, separate from general NHS services and since the compulsory powers which are available in relation to psychiatric patients make them different from the vast majority of other NHS patients. They therefore see attractions in bringing together the various protective functions under a single body, thus making it simpler for patients and for staff to know to whom to turn if a problem arises. The Royal College of Psychiatrists argue that the role of Mental Health Review Tribunals should be expanded and merged into that of new bodies which would also undertake functions analogous to those of the Scottish Mental Welfare Commission.

6.34 The Government considers that the Royal Commission's aim that psychiatric patients should, to the fullest extent practicable, be treated in the same way as non-psychiatric patients should remain a guiding principle in legislation and in the provision of services. As paragraph 6.31 above, points out, a number of developments in the past decade have given patients in general opportunities to make known their views on services and to have any complaints adequately considered. If mental welfare commissions were to be introduced for psychiatric patients, there would seem little point in continuing to apply to them the various arrangements now available to all patients. Mental welfare commissions in England and Wales would have to draw on scarce manpower resources - medical manpower in particular - and would have considerable financial implications - these have been estimated at 2 million per year at current prices. More importantly, it is thought wrong in principle to reintroduce a system for psychiatric patients which is fundamentally different from that for other patients.

6.35 The Government's view is that the most important factor in safeguarding the position of vulnerable patients and ensuring that their rights are upheld is personal contact between the patient and someone whose job it is to explain the position from the patient's own point of view and that the introduction of another system of complaints procedure or of another 'watchdog' organisation is not the answer. The Government therefore proposes to try out a limited number of experimental schemes of patients' advisers. It wishes to emphasise that these should in no way be taken as a criticism of the staff who look after patients but as a recognition that some patients may have lost their initiative to act in their own best interest or to seek discharge from hospital or hostel, and may need encouragement and support which hard-pressed staff are unable to provide on an individual basis. It is hoped that the trial schemes will have the full co-operation of all concerned. The schemes will of course need to be evaluated to see how useful they prove to be.

1981 Reform of Mental Health Legislation

Mental Health Act Commission

29. The most important safeguards to ensure that patients are not detained unnecessarily are the carefully drawn criteria for admission and renewal of detention and access to Mental Health Review Tribunals; but other checks are also needed. The 1978 White Paper discussed the possibility of setting up mental welfare commissions on the lines of the Scottish Mental Welfare Commission, to protect psychiatric patients, but concluded that it was wrong in principle to reintroduce a system for psychiatric patients which was fundamentally different from that for other patients.

The present Government takes a different view: patients detained under the compulsory powers of the Mental Health Act are in a unique position because they have no right to discharge themselves, unlike all other patients including other psychiatric patients. It is essential to ensure therefore that the procedures leading to the detention of such patients and the renewal of the authority for their detention are subject to scrutiny. The responsibility for undertaking this scrutiny must rest with a body which is independent of those who have been involved in the compulsory admission and continued detention. Accordingly the Government proposes to set up a Mental Health Act Commission with a general protective function for detained patients.

30. A new factor since 1978 which has further influenced the Government on this matter is one of the proposals made by the Rampton Hospital Management Review Team, chaired by Sir John Boynton, which reported to the Secretary of State in October 1980 on the management of Rampton Special Hospital. In considering the wider issues surrounding their enquiry the Review Team said:

"There is a strong case for an appointed body to inspect and monitor closed institutions such as Rampton and the other special hospitals, or indeed wherever patients are subject to detention under the Mental Health Act. The exact powers and functions of such a body would be for further consideration, but we think it might be constituted on the lines of the old Board of Control or the Scottish Mental Welfare Commission. Its functions might include the review of patient care and treatment, the independent investigation of more serious complaints (from whatever source) and a general protective function on behalf of detained patients which need not necessarily cut across the functions of MHRTs. Such a protective function might include some responsibilities in connection with the difficult problem of consent to treatment in respect of detained patients ....."

The Bill provides for the Mental Health Act Commission to implement this recommendation.

31. Under this provision the Secretary of State will be required to set up a special health authority to be called the Mental Health Act Commission (MHAC) to exercise a general protective function for detained patients and to carry out certain other functions given to Secretary of State in the Bill. A 'special health authority' is a body set up under the National Health Service Act 1977 and the Secretary of State makes provision for its membership, may direct it to exercise any of his powers and duties and may give it directions as to how it carries out its functions. The Commission will thus be responsible to the Secretary of State, but will be an independent body with members who will be eminent in their different fields; it will be a real safeguard to patients where-ever they are detained.

32. The Government intends that the members of the proposed MHAC will be lawyers, doctors, nurses, psychologists, social workers and laymen. Their part-time services, as commissioners, will include visiting hospitals where patients are detained. There will probably be one or two visits a year to each of the 300 or so local hospitals and mental nursing homes in England and Wales with detained patients, with around one visit a month to the four special hospitals. In their visits the Commission members will make themselves available to detained patients who wish to see them, will ensure that staff are helping patients to understand their legal position and their rights. They will look at patients' records of admission and renewal of detention and at records relating to treatment. They will also ensure that detained patients are satisfied with the handling of any complaints they may make.

33. The Commission will not trespass in any way on the Mental Health Review Tribunal's role of deciding whether an individual patient should continue to be detained; the Commission's concern will be to ensure that hospitals have adopted and are following proper procedures for using the powers of detention. The Commission will look at the use of powers, such as emergency admissions under section 29, which are outside the scope of the Tribunal. It will also have an important role in monitoring the use of the explicit power to treat detained patients without their consent subject to certain safeguards (see below): it will ensure that those safeguards are understood by staff and patients and that they are being observed.

34. Equally the proposed functions of the Commission will be separate from other inspectorial bodies; the Commission will not inspect and report on services in mental illness and mental handicap hospitals and units in the way that the Health Advisory Service and the Development Team for the Mentally Handicapped do. The Commission's concern will be the particular problems which arise from detention of specific individuals in hospital rather than the general services which affect all mentally ill and mentally handicapped patients. The name 'Mental Health Act Commission' has been chosen deliberately to emphasise its responsibilities for seeing that patients have full advantage of all the available legal safeguards under the Act as amended.

35. The Commission will have important duties concerning consent to treatment. This is currently one of the most important and most difficult issues in the mental health field and has been widely discussed. In particular there has been much debate about whether, and to what extent, staff should be authorised to impose treatment on detained patients. The Government takes the view that compulsory admission should be closely related to the prospect of benefit from treatment. It therefore proposes to provide specific statutory authority for treatment to be given to detained patients for their mental disorder without their consent in certain circumstances. But there must be safeguards for the patient and the nature of these has also been much debated. A balance must be struck between protecting the rights of the patient and providing for him to receive the treatment he needs.

36. That balance depends on the particular form of treatment. The proposals in the Bill distinguish three groups of treatment for mental disorder:-

    (a) Treatments which give rise to special concern - - only to be given with the patient's consent and the agreement of an independent doctor.

    (b) Other specific items of treatment prescribed under the direction of the responsible medical officer which are not identified as giving rise to special concern-may be given without the patient's consent with the agreement of an independent doctor.

    (c) Forms of treatment (including general medical and nursing care) which come within the definition of medical treatment under the Act but are not included in (a) or (b) above -
    may be given without the patient's consent by or under the direction of his responsible medical officer.

    Special conditions are set out for treating patients in an emergency.

37. The first group, treatments which give rise to special concern, are those where the detained patient needs most protection since (in the terms of the 1978 White Paper and the Butler Report) they are "hazardous, irreversible or not fully established". In these cases the patient's consent is needed as well as a second opinion. Paragraph 38 describes the way these treatments will be defined and paragraph 39 explains what is meant by "an independent doctor". The second group consists of specific items of treatment (such as drugs) which are not included among the treatments of special concern. The Bill will authorise the responsible medical officer to give such a treatment to a detained patient who is capable of giving consent but is unwilling to do so, provided that an independent doctor agrees that the treatment should be given. The agreement of an independent doctor to the treatment will also be necessary if a patient is unable to understand what is involved in consent to treatment. The third group includes all other treatments for mental disorder which came within the definition of "medical treatment" in the Act again excepting those which give rise to special concern. Medical treatment has a wide meaning in the Mental Health Act - it includes nursing and care, habilitation, and rehabilitation under medical supervision. The Bill provides that these treatments may be given to a detained patient without his consent, though in practice it is impossible to undertake many of the therapies concerned without a patient's co-operation.

38. The Mental Health Act Commission will have two major responsibilities in these matters. Firstly, it is intended that they will consider which treatments give rise to special concern. Some may be listed in regulations, but it will be difficult to give precise legal definitions to all the treatments which give rise to special concern and the circumstances in which they do so. For this reason the Bill provides for a Code of Practice as well as regulations. The Code will not be legally binding, but doctors would take account of it in deciding how to treat their patients. It is intended that the Mental Health Act Commission will be directed to draw up the Code of Practice, after suitable consultation, and to revise it from time to time, to take account of new and changing forms of treatment. The Code's contents will be for the Commission to decide, but it might include reference to treatments such as electroconvulsive therapy when used in particular circumstances, long acting drugs, and behaviour therapies. 39. The second major responsibility of the Mental Health Act Commission will be to appoint the "independent doctors" whose agreement must be sought. The Bill provides that agreement to treatment in the circumstances discussed above may only be given by medical practitioners appointed for the purpose by the Secretary of State. It is intended that the Commission will exercise the Secretary of State's powers to appoint medical practitioners, who will include the psychiatrist members of the Commission itself. This will ensure that the opinions are independent and will enable the Commission both to monitor the use of the power to impose treatment and to offer advice on professional and ethical complexities. A psychiatrist so appointed who gives the second opinion on any case will be able to discuss the principles which should apply in giving second opinions (with Commission (members from other disciplines and to take account of their views. It is also intended that the independent doctor will discuss the patient's treatment with members of the team caring for him before giving his opinion and will take account of wider social and ethical matters. The Commission will build up considerable expertise in the care and treatment of detained patients and particularly on consent to treatment. They will be able to include in the Code of Practice and in other publications advice about all aspects of the care and treatment of detained patients and guidance on the giving of treatment for mental disorder with or without the patient's consent.

40. The Mental Health Act Commission will therefore be given important responsibilities, on behalf of the Secretary of State, on consent to treatment as well as its more general protective function for detained patients. It will also be a forum for inter-professional discussion of issues concerning the law and ethics on the treatment of detained patients.

The Commission will thus have a central role in the working of the revised Mental Health Act.

...

Other Safeguards

41. The Bill also proposes other changes to the law which affect detained patients in hospital. It will considerably curtail the circumstances in which incoming or outgoing mail may be withheld, and will ensure that there is no scrutiny at all of the mail of informal patients. The Bill provides that outgoing mail from a detained patient may be withheld only if the proposed recipient has asked that this should be done with correspondence addressed to him by the patient. Incoming mail will not be opened or withheld at all except in the special hospitals, where exceptional arrangements are needed for security reasons. In the special hospitals, an officer will be authorised to withhold mail if it is necessary in the interests of the patient's safety or to protect others. This will not apply to letters from a number of persons and bodies including MPs, the Health Service Commissioner, and a Mental Health Review Tribunal. If mail is withheld from a patient in a special hospital on security grounds he will have to be informed within 24 hours and will be able to make representations to the hospital managers.

42. The proposals described above will all help staff as well as patients; one of the greatest problems in using the 1959 Act has been the uncertainty about some of its provisions. The Commission will be able to discuss, and advise on, problems concerning the law and good practice in relation to detained patients; as a result staff will benefit from clear recommendations and procedures. The proposals for handling patients' mail will also help staff in special hospitals to carry out their difficult task of caring for patients in conditions of high security. Other proposals in the Bill, notably the introduction of the nurses' holding power, will give staff clear legal protection in carrying out their professional duties

1983 Mental Health Act

A "special health authority" known as "The Mental Health Act Commission" was established by section 121(1)

It:

121(2a): Appoints the doctors to give a second opinion with respect to consent to treatment 121(2a) + 118: Appoints doctors to prepare a Code of Practice, including specifying extra forms of treatment that should not be given without consent.

121(2b) + 61: Receives reports on treatment under the consent to treatment provisions

121(2b) + 120(1): Reviews the way the detention of patients under the Act is exercised by visiting and interviewing patients in private and investigating complaints

121(4): with consent of the Secretary of State, it may keep under review the care and treatment of patients not formally detained

121(7+8+9): Reviews any decision to withhold correspondence

121(10): Produces a report every two years

1985 Extracts from Bopcris summary of first report - archive - , indicating how the Commission interpreted what it was supposed to do:

The Commission has identified many areas in mental health services for detained patients (and for some informal patients as well) where difficulties have arisen in terms of practice and in the law. This Report and a draft Code of Practice that the Commission is formulating are intended to address this problem. The Report is divided into the following sections: (1) introduction; (2) Commission - structure and organisation; (3) context of Mental Health legislation; (4) main changes made in 1983; (5) Commission's functions; (6) features of the Commission's role; (7) visits to hospitals and nursing homes; (8) subjects arising on visits; (9) visits to Social Services Departments; (10) complaints; (11) second opinions; (12) special hospitals; (13) draft Code of Practice; (14) postal packets; (15) black and ethnic minorities; (16) present and the future; and (17) conclusion



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